FEDERAL COURT OF AUSTRALIA

MZAHU v Minister for Immigration and Border Protection [2016] FCA 537

ORDERS

THE COURT ORDERS THAT:

1.    The amended draft notice of appeal lodged on 18 April 2016 be treated as the notice of appeal.

2.    The appeal be dismissed.

3.    The appellants pay the costs of the first respondent, as taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUCHANAN J:

1    The first and second appellants are mother and daughter. The first appellant is a citizen of India. She came to Australia in 2009, arriving on 18 June 2009 on a student visa. Her husband came as her dependant and they both commenced to live in Australia.

2    The second appellant was born in Australia some months later, on 5 November 2009, but was evidently conceived before her parents came to this country.

3    The marriage did not survive. It broke down around August 2013, although the parents did not physically separate until January 2014, when the first appellant returned to India, apparently for a family event. The first appellant had, in fact, regularly returned to India while she held student visas (three in total), doing so also in 2010, 2012 and 2013 as well as 2014.

4    When the appellants last returned to Australia on 22 March 2014, the first appellant’s student visa was cancelled when she entered Australia at Melbourne Airport, and the appellants were taken into immigration detention. The reason for cancellation was non-compliance with visa condition 8202, which requires satisfactory progress and satisfactory attendance at the nominated and registered enrolled course of study.

5    On 27 March 2014, the first appellant lodged an application for a protection visa, relying on s 36 of the Migration Act 1958 (Cth) (“the Act”). That application named the second appellant as a family member in the application.

6    The relevant aspects of s 36 of the Act for the first appellant’s application are:

36    Protection visas

…

(1A)    An applicant for a protection visa must satisfy:

…

(b)    at least one of the criteria in subsection (2).

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(Emphasis in original.)

7    Section 36(2)(b) and (c) make the second appellant eligible for a protection visa if the first appellant is eligible under s 36(2)(a) or (aa). However, unless a separate claim for protection was made for the second appellant (which it was not) no occasion would normally arise to separately consider a claim (of a kind now made, for example) that the second appellant was directly exposed to a risk of harm under s 36(2)(a) or (aa). Whether any claims under s 36(2)(a) or (aa) were made for the second appellant, or required consideration, is a matter to which I will return.

8    In her application for a protection visa, the first appellant said:

(Emphasis in original.)

9    A delegate of the Minister interviewed the first appellant on 23 April 2014 and shortly thereafter, on 8 May 2014, refused the first appellant’s application for a protection visa and, consequently, that on behalf of the second appellant as well.

10    The delegate recorded the central elements of the claim as follows:

8.    CLAIMS FOR PROTECTION

…

•    The first named applicant has no intention to maintain the spousal relationship anymore and will be looking into the divorce proceedings soon. She however fears that if she were to return to India now or in the reasonably foreseeable future, her in-laws will kill her in order to take the second named applicant away from her. She claims that she is unable to move to other parts of India to evade the feared harm, as she will be relying on her widowed mother for help. Nor does she believe the authorities in India are able or willing to protect her from the feared harm.

11    The delegate’s findings were as follows:

9.    FINDINGS OF FACT (CREDIBILITY)

…

In the present case, having considered the evidence before me, I cannot be satisfied that the first named applicant’s now separated husband or his family has the intention to contest the custody of the second named applicant or to kill the first named applicant for it.

The first named applicant has made numerous return trips to India since her initial arrival in Australia in 2009. The second named applicant has also travelled back to India three times and stayed there for accumulatively 17 months. On the applicant’s own evidence, the second named applicant mainly stayed with the first named applicant’s mother, when she was in India. The applicant’s in-laws visited the second named applicant from time to time and looked after her for about three to four months. The first named applicant travelled to India to bring the second named applicant back to Australia in February 2013, when she heard that the second named applicant was slapped by her mother-in-law. She has not spoken with her in-laws since then.

The first named applicant’s in-laws are said to having been pushing the first named applicant’s husband to divorce her for the last two years. They allegedly do not like the first and second named applicants, and want their son to marry another girl to receive more dowry.

As to her husband, the first named applicant reveals that he has not visited her or the second named applicant in detention. In fact, the first named applicant has not heard from him since she left for India in January 2014. She does not know where he is or what he is doing. The applicant’s husband has never expressed his intention to gain the custody of the second named applicant.

Whilst I accept that the first named applicant may have been a victim of domestic violence at the hands of her now separated husband in Australia, I do not accept that her husband is interested in contesting the second named applicant’s custody if their marriage were to be dissolved by a court of law. The first named applicant’s relationship with her in-laws may have become estranged in recent years, I however do not accept that they want the custody of the second named applicant or that they will kill the first named applicant for it, given that the applicants were in India for two months very recently, when the marriage between the first named applicant and her husband has clearly broken down, and that the applicants’ safety was not compromised in any way. I do not accept the first named applicant’s allusion that her in-laws were unaware of their travel to India, as the first named applicant’s husband knew about it and would have conveyed this to his family if it was their intention to take the second named applicant and kill the first named applicant.

As I am not satisfied that the first named applicant’s husband and in-laws are interested in gaining the sole custody of the second named applicant, I cannot be persuaded that the first named applicant’s in-laws are motivated to kill her.

With respect to the first named applicant’s contention that she is concerned about the welfare of the second named applicant in India, as she only has a widowed mother to return to and may not be able to provide for the second named applicant, I note that the first named applicant’s mother has cared for the second named applicant in India for about a year accumulatively and that the first named applicant has demonstrated her ability to look after the second named applicant in Australia even when in an abusive relationship. I therefore have formed a view that it is unlikely that the first named applicant’s ability to provide for the second named applicant will be threatened, if she were to return to India now or in reasonably foreseeable future.

As I have not accepted that the first named applicant will be killed by her in-laws in India or that she will be unable to provide for the second named applicant, I do not accept that the claims for protection advanced by the first named applicant are credible.

12    Although those findings do not bind any subsequent decision-maker, they are relevant nevertheless to an understanding of the scope of the issues which might arise on a subsequent review of the delegate’s decision. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”), the High Court observed:

35    … the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

13    On 13 May 2014, an application was made to the Refugee Review Tribunal (“the RRT”) in the names of both appellants to review the decision of the delegate. The fact that a joint application for review was made does not change the character of the applications under consideration. They remained an application for a visa by the first appellant relying on s 36(2)(a) or (aa) which included an application for a visa on behalf of the second appellant as a family member.

14    The first appellant forwarded a further document to the RRT, dated 28 May 2014, which said:

1.    That I am separated from my husband after a child and hence I get a threat from my husband family and hence if I go back to India they will kill me and hence I applied for a protection visa which was refused.

2.    That the main reason of separated from my husband is because he use to beat me and my little kid once he gets drunk.

3.    That I have been in detention for a long time with little kid and no mistake of this kid. We are only seeking / requesting protection as we have a threat back in our country from my ex-husband family.

15    The first appellant appeared before the RRT on 5 June 2014. On 6 June 2014, the RRT affirmed the decision of the delegate.

16    Although there were subsequent proceedings for judicial review conducted before the Federal Circuit Court of Australia (“the FCCA”), to which I will refer, it is convenient to first deal directly at this point with the decision of the RRT because it is attacks on that decision which constitute the appellants’ case in this Court.

17    Now is a convenient point to observe that each of the arguments pressed in this Court is new. They were not the foundation for the application for judicial review in the FCCA. However, I will not reject them on that account in the present case. I can see no prejudice to the respondents if the arguments are considered. The appellants were not formally represented before the FCCA and it would not be the first time that a sound legal argument emerged only with legal representation, or a change in representation.

18    The following are the grounds of appeal which were relied on in this Court:

1.    The Federal Circuit Court erred in failing to find that the Tribunal engaged in an illogical or irrational line of reasoning in respect of the first appellant’s credibility.

2.    The Federal Circuit Court erred in failing to find that the Tribunal constructively failed to exercise jurisdiction in relation to the second applicant, in that the Tribunal failed to consider whether the second applicant met the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

3.    The Federal Circuit Court erred in failing to find that the Tribunal failed to comply with the requirements of ss 422B(3) and 425 of the Migration Act 1958 (Cth) in relation to the second applicant, in that:

a.    the Tribunal failed to consider whether the circumstances of the case, including the second applicant’s best interests, required that she be separately represented at the hearing; and

b.    having failed to consider that issue, the Tribunal did not adjourn the hearing to enable the second applicant’s migration agent to attend, or an independent person to be appointed.

19    I will not be diverted for the moment by the unconvincing charge of error in the FCCA failing to make a finding not pressed on it.

20    Ground 1 relies upon a suggested misunderstanding by the RRT of the content and meaning of the first appellant’s visa application. It was submitted that a reference to “this time” in the answer to Question 39 was misunderstood by the RRT to be a reference to a trip taken by the first appellant to India in 2014, rather than one taken in 2013.

21    I see little room for misunderstanding about the apparent meaning of the statements which were made in the application for a protection visa, although their evaluation is a matter for the RRT, not this Court. I see no error (jurisdictional or otherwise) in that evaluation.

22    The first appellant had left her child in India at one point. The RRT referred to her going to India “a year and a half ago” (i.e. the 2013 trip) “when she went back to India to collect her daughter”. That was before the separation.

23    The RRT dealt with those issues as follows:

22.    The Tribunal has had regard to the fact the applicant has not had contact with the her in-laws since a year and a half ago when she went back to India to collect her daughter. Further, she did not see her in-laws at all during the month and a half that she was in India in early 2014. While the applicant claimed that her in-laws did not know she was in India, as the Tribunal put to the applicant in the hearing, she confirmed her husband was aware that she was going to India at this time, and in these circumstances, the Tribunal does not accept that they would not have learnt from at least her husband about her presence there, if not from others in the area who would have known she was back.

23.    The Tribunal therefore does not accept that if the applicant’s in-laws wanted to kill her or take her child away from her, they did not try to do anything while she was in India in 2014, including at least have contact with the applicant child. The Tribunal does not accept the applicant’s explanation that during that time there was a family function at her home and a lot of people gathering there. As it put to the applicant, she was in India for a month and a half and it does not accept over that period her in-laws would not have done something if their intention to was to take the applicant child from her. The Tribunal has taken into consideration the applicant’s claims that her husband was only aware that she was in India for fifteen days and was not aware that she had extended her ticket and for two weeks there were a lot of people and preparations for her sister’s wedding so her in laws thought she was back in Australia after fifteen days. The Tribunal does not accept that if the applicant’s in-laws intended to harm the applicant and take her child away from her, that they would not have taken the opportunity to do something to achieve this while she was in India whether for fifteen days or a month and half and it does not accept that they would not have been able to learn that she was still in India for an additional period of a month given they are form the same area, as confirmed by the applicant at the beginning of the hearing.

24.    The applicant claimed in the hearing that she did not have any problems because her in-laws did not come to her place. The Tribunal therefore does not accept the applicant’s claim in her protection visa application that when she went to India this time, her partner’s family tried to harm her and tried to take her child away or that they attacked the applicant and her family. The Tribunal notes that when it put this information to the applicant in the hearing, she claimed that her in-laws came to her house in 2013 and said wrong words to her and her mother and told her that they wanted to take the applicant child with them. She also claimed that when the neighbours heard her shouting, they came and told her in-laws that it was usual for the child to live with the mother and not the in-laws and because they feared a lot of people were coming to the house, her in-law’s went back to their home. As the Tribunal put to the applicant in the hearing, this is not consistent with the claims made in her protection visa application as she had not mentioned anything about this incident in 2013. The Tribunal does not accept that this may have been the result of a mistake by the applicant’s adviser. The Tribunal notes the applicant is fluent in English and she has signed the protection visa application form as being true and correct. The Tribunal therefore does not accept that this incident occurred in 2013.

25.    The Tribunal also finds this evidence inconsistent with the applicant’s earlier evidence in the hearing. The Tribunal notes when it asked the applicant what her in-laws did to stop her from bringing the applicant child with her to Australia, as she initially claimed they tried to do in 2013, the applicant stated that she did not know but they said the child was living with them and not with her. The applicant made no mention about this incident where her neighbours came in response to hearing her shouting at her in-laws and that they returned to their home as a result.

26.    Further, the Tribunal notes when it asked the applicant if anyone from her husband’s family harmed her, the applicant stated that they once slapped her on the face before she first came to Australia because they said she was doing the wrong thing around the house. Again, the Tribunal does not find the applicant’s evidence in the hearing consistent with her evidence in the protection visa application that they attacked her during her last visit. The Tribunal therefore does not accept that the applicant was ever harmed by her in-laws either in 2013, 2014 or at any time, or that she had been attacked before and that is the true reason she ran away and came to Australia, as she claimed in her protection visa application.

(Emphasis added.)

24    It is apparent that the RRT understood that the first appellant wished, at the hearing before it, to connect the statement in her visa application with alleged conduct in 2013, rather than 2014. The RRT simply did not accept the explanation given by the first appellant. The RRT was not bound to do so. In paragraph 24, in particular, the RRT referred to the exact claim now made. A conclusion that the claims in the hearing were inconsistent with the claims in the visa application was not itself illogical or irrational. Nor can it be concluded in my view (or seriously contended) that the explanation given by the RRT for its assessment should be dismissed as “an illogical or irrational line of reasoning”.

25    I would reject Ground 1.

26    In support of Ground 2, the appellants relied on observations by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”). At [60], the Full Court explained that the RRT was not strictly confined to claims expressly articulated by an applicant. The Full Court, however, noted that the RRT:

60    … is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

27    It observed that:

63    It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. …

(Emphasis added.)

but emphasised that:

68    … A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. …

28    In the present case, consideration of the content and context of the applications made to the Minister does not support the appellants’ arguments.

29    The application for a protection visa made by the first appellant on 27 March 2014 contained Part A and Part B. Part A required identification of “persons included in this application”. At Question 2 in Part A the following instruction appeared:

30    A distinction is there made between those persons seeking protection in their own right, and those claiming as family members. That distinction reflects the differing considerations arising under s 36(2)(a) and (aa) on the one hand, and s 36(2)(b) and (c) on the other hand.

31    Question 23 in Part A required a response from (or on behalf of) all persons named in answer to Question 2 (here the first and second appellants):

32    However, a Part B was only completed for the first appellant. Part B is entitled “Application for a person who wishes to submit their own claims for protection”.

33    Question 2 in Part B was completed as follows:

34    It was Part B which contained the questions and answers set out earlier which constituted the particular claims for protection. On their face, those claims for protection were made by the first appellant relying on s 36(2)(a) and (aa). She claimed to fear being killed so her child could be taken. The claim made on behalf of the second appellant was as a dependent family member.

35    At [4], the RRT said:

4.    Only the first named applicant has made specific claims under the Refugees Convention and Complementary Protection, her child relying on her membership of her family. For convenience, therefore, the Tribunal will refer to the first named applicant as the applicant.

36    The submissions for the appellants attacked this approach, suggesting that it demonstrated jurisdictional error. It was submitted that separate attention was required to whether the second appellant’s circumstances independently satisfied the criteria in s 36(2)(a) or (aa) of the Act.

37    In my view, the approach taken by the RRT was unremarkable. It was not until submissions were articulated in this Court that there was a suggestion that the delegate, and the RRT, had failed to address matters which arose for attention from the visa application or from other material.

38    I accept that a failure to properly fill out a particular form could not defeat, and should not be allowed to obscure, a claim to fear persecution which fairly arose from the stated basis for a protection visa, whether for a primary applicant or someone nominated as a family member (see e.g. SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; (2011) 125 ALD 38 per Katzmann J at [62]-[63]).

39    However, neither a delegate nor the RRT is obliged to construct or articulate claims, or find a legal foundation for them, which does not appear from the material.

40    The present case is one which may be contrasted with the circumstances dealt with by Rares J in SZTQD v Minister for Immigration and Border Protection [2016] FCA 339 (“SZTQD”). In SZTQD, Rares J discussed the potential interaction between SZBEL and cases such as NABE. His Honour’s identification in SZTQD of a separate, clearly articulated, claim which required, but did not receive, attention by the RRT is a useful illustration of the applicable principle being worked out in practice.

41    In my view, the RRT had no obligation to separately consider the possibility that an independent claim for protection could be articulated on behalf of the second appellant, when no claim of that kind had, in fact, been independently or separately advanced.

42    In any event, in my view it is quite clear that the RRT’s findings rejected any available factual foundation for such a possible claim.

43    Apart from the extracts set out earlier, the RRT found:

27.    The Tribunal also does not accept that if the applicant’s in-laws wanted the applicant child to live with them, that they would only have her for a period of two to three months, according to the applicant’s evidence in the hearing, and not a longer period during the one and a half years the applicant child was living in India, mostly with the applicant’s mother. The Tribunal finds the fact that the applicant child spend such a short period of time with the applicant’s in-laws and they did not make any attempt to take her from the applicant’s mother during the period of more than a year that she was in India, without the applicant, leads the Tribunal to be satisfied that the applicant’s in-laws had no interest in having custody of the applicant child. The Tribunal therefore does not accept the applicant’s claim in the hearing that her in-laws want her child because her husband will inherit land sometime in the future and therefore if she keeps her child, the land will go to her. …

28.    Similarly, the Tribunal does not accept the applicant’s claim that when she was going to India in January 2014, her husband told her to leave the applicant child there and he believed that she would do this. It does not accept that her husband believed that if she left the applicant child with her mother, that his family could easily extract her from there. …

29.    The Tribunal has also taken into consideration the fact the applicant’s husband has not had any contact with his daughter since she departed Australia in January 2014 and has appeared to have made no effort to locate her, despite being made aware by the applicant’s message that they were returning to Australia in March 2014. The Tribunal does not accept in these circumstances that the applicant’s husband has any interest in either the applicant or their child and does not accept that he would seek to have custody of the applicant child, now or in the reasonably foreseeable future.

30.    … The Tribunal does not accept on the applicant’s very limited evidence about her husband’s family that they have any connections to either the police or politicians or that they will use the police and the politicians to kill her and take away her child.

31.    Based on the above, the Tribunal does not accept that the applicant has been threatened by her in-laws that they will kill her and take her child from her. It does not accept that the applicant’s husband or her in-laws want to take the applicant child away from the applicant if she returns to India, now or in the reasonably foreseeable future. …

…

Complementary protection obligations

…

36.    Based on the findings and reasons of the Tribunal above regarding the applicant’s loss of contact with her husband since January 2014, her in-laws since January 2013 and the lack of interest demonstrated by her husband or his family in either the applicant or the applicant child, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm, including being killed or having her child taken from her, from her in-laws. …

44    The argument about this matter, like the argument in NABE, “seems to have emerged … in this second round appellate hearing” (NABE at [67]), not having been earlier articulated. In my view, it lacks both legal and factual substance. I see no jurisdictional error in the approach taken by the RRT.

45    Ground 3 amounts to a suggestion that the RRT denied procedural fairness by not intervening to require separate representation for the second appellant.

46    The appellants relied on a judgment of Barker J in WZAOT v Minister for Immigration and Citizenship (2013) 211 FCR 543, but that judgment is distinguishable. Barker J was considering an application for a protection visa made expressly on behalf of a child, in her own right. A migration agent had been asked to separately represent the interests of the child. In the course of his judgment, Barker J rejected arguments that the RRT and the FCCA had each failed to appreciate the need for the child to have effective representation of the child’s own interests. Issues of that kind do not arise on the present appeal.

47    More to the point, his Honour also rejected the suggestion that it was obligatory to appoint an “independent” representative for the child, saying at [101]:

101    In my view, there is no automatic requirement for the Tribunal, when faced with an application brought on behalf of a very young child, to appoint a representative, not being either of the parents or other legal guardian of the child. While one can understand that a Tribunal, such as the Refugee Review Tribunal, may find it appropriate to develop protocols or guidelines or rules as to how members should deal with the question of representation of young children, that does not detract from the conclusion that I have reached that there was, in this case, no automatic obligation on the Tribunal to cause some “independent” person to represent the interests of the appellant child.     

48    None of that discussion assists the argument put for the present appellants.

49    In the present case also, there was a migration agent, but the migration agent failed to attend the hearing before the RRT. The RRT decided to proceed. At the hearing of the present appeal there was some discussion of whether I should listen to about 90 seconds of a recording of the proceeding before the RRT. During that discussion, counsel for the appellants informed the Court that the recording would show that the first appellant had agreed to proceed without the migration agent present and had not suggested to the MRT that the second appellant should be separately represented, by the migration agent or otherwise. Those factual matters were agreed by counsel for the Minister and it was unnecessary, therefore, to verify them from the recording.

50    On the present appeal, it was suggested that the RRT was nevertheless bound to consider whether it should have adjourned so the migration agent could be present to separately represent the interests of the second appellant. I do not accept this contention.

51    There was no conflict of interest between the first and second appellants (the mother and her child), either procedural or substantive. The notion that the first appellant should not speak for her child should not be encouraged. The point is one which has been developed particularly for the appeal in this Court, but it is an unattractive one.

52    I do not regard Ground 3 as having any substance.

53    When the carriage of a challenge to the decision of the RRT was solely in the hands of the first appellant, and she represented both herself and her daughter before the FCCA, the sole ground for judicial review upon which she proceeded in that court was expressed as follows:

1.    There is a jurisdictional error made by the RRT. RRT has over looked the facts of my case and refused the case on the basis that I am not entitled to be a refugee. I am eligible under the criterion of complimentary protection. I have a severe threat from my ex partners family in India who want to kills me. Its a threat to my childs life and I would like to plea to the federal court of Australia to look into this matter and please reopen my case

54    That ground was pressed, after two adjournments to obtain legal advice and/or assistance, in the form in which it appeared in the application for judicial review filed on 8 July 2014.

55    The judgment of the FCCA said:

14.    To a large extent, that purported ground of review is an application for merits review. This court is not permitted to review matters on that basis. As explained to the applicant at the hearing, the court is only able to remit a matter to the tribunal if there has been a jurisdictional error. The applicant, in oral submissions, was unable to identify any jurisdictional error.

15.    The applicant said in her application that the tribunal had overlooked the facts of her case. However, the applicant was not able to particularise that claim in any way. It seems to me that the tribunal has carefully and thoroughly assessed all of the pertinent facts that the applicants raised. I do not accept that the tribunal has overlooked the facts of the applicants’ case. The applicants did not otherwise give any indication of what the jurisdictional error allegedly made by the tribunal might have been.

16.    In oral submissions, the applicant said that:

a)    her daughter was born here in Australia;

b)    when she has been back to India, she has become ill;

c)    she is very sensitive and the Indian weather does not suit her;

d)    her in-laws would snatch her daughter; and

e)    she cannot live without her mother.

17.    Again, these are matters going to the merits of the decision. The court is not able to entertain applications on that basis.

18.    I have read the tribunal’s decision. I am unable to detect any jurisdictional error in it. Nor does there appear to be jurisdictional error in the tribunal’s decision-making process. The tribunal relied on the information that the applicant gave it. The tribunal discussed with the applicant at the hearing the various concerns that the tribunal had with her claims. In all the circumstances, there is no sign of any jurisdictional error in the tribunal’s reasons for decision or decision making process. The application must be dismissed.

56    I see no error in those conclusions. Indeed, it was no part of the appellants’ case to suggest any such error. Instead, the errors made by the FCCA were alleged to be a failure to accept those contentions I have discussed above.

57    If any of the arguments I have rejected had been upheld, it might be possible to say, at a very general level, that the FCCA had erred by failing to identify any jurisdictional error, and by rejecting the application for judicial review which was before it, but there is no substance in the particular allegations of error. There is no substance either in a charge of error at a more general level of abstraction.

58    Although the proceedings were initiated in the form of an application for leave to appeal, it was accepted that an appeal lay as of right. I indicated at the commencement of the hearing of the appeal that the amended draft notice of appeal lodged on 18 April 2016 would be treated as the notice of appeal.

59    The appeal must be dismissed, with costs.

Associate:

Dated:    18 May 2016